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Personal Injury Topics of Importance To Attorneys, Consumers, and Businesses

What Personal Injury Is – and What it Is Not

What Personal Injury Is – and What it Is Not

As soon as an injury was due to the negligent or reckless actions of someone else or a company, the law permits you to find financial reparation. Folks suffer from personal injuries each and every moment. If there’s any personal injury you could have a legal claim.

Even in the event the injury has occurred as a result of the defective equipment supplied by another company, still you’re eligible to claim compensation from your employer. In any case whenever you’re involved in such injuries, getting the correct personal injury attorney would be the absolute most ideal option to assist you take the required action against the individual accountable for the injury.

Whether your injury is as a consequence of a big accident or a medical well-being, you can request compensation. If your injuries will limit your capability to work for your complete life, the amount recovered for lost wages can be rather substantial. So if you’re injured badly and you understand that the injuries you’re going through are extremely painful and the individual accountable for the mishap or the individual accountable for the injury is roaming around freely. Personal Injury can impact someone and his life in the assorted ways. When you take into consideration the personal injury claim the most crucial things you focus is hiring a professional personal injury attorney who will provide you with the ideal compensation that you really deserve. If you’re the casualty of a personal injury, there are many matters you can do in order to help yourself. Even a minor personal injury suffered as a consequence of the negligence of a third party could be compensated provided in the event the victim can prove his case with significant evidence.

Things You Should Know About Personal Injury

If you’ve suffered from some severe traumas and due to which you also have sustained a good deal of financial loss, not just that the accident has led to some severe damages too. Therefore, if you depart from your accident scene and recover some severe traumas and later plan to submit a lawsuit for the very same, you’re going t be questioned as to why you left the scene. Though it’s not bad to live a standard life post injuries, a number of the actions could be counted as a lie and you’ve got to be certain that nobody blames you for the incorrect factors.

When you employ an injury lawyer your half of the pressure will reduce since they will assist you in gathering all of the evidence, they will offer your case a comprehensive study and research. Personal injury lawyers have a tendency to specialize in several distinct fields. When you are thinking about whether to employ a specific personal injury lawyer, make sure that you ask questions regarding their preceding case history. It’s always important to talk to an expert personal injury lawyer prior to making any statements to an insurance policy company and ahead of accepting a settlement offer.

The New Fuss About Personal Injury

You desire a personal injury attorney before you take any initiative. Before you do anything else, get in touch with a personal injury attorney without delay. If you don’t know anybody who has used a personal injury attorney, check with the neighborhood bar association.

Can I Bring A Lawsuit For My Scaffolding Injury?

Can I Bring A Lawsuit For My Scaffolding Injury?

According to the Occupational Safety and Health Administration (OSHA) more than 2,000 people die in the construction industry every year. The leading cause of fatalities in this industry is falling from scaffolds. Consequently, unsafe scaffolding lawsuits are common in the construction sector. When you are a victim of a scaffold accident, who is to blame for the injuries and how can you pursue compensation?  Below is a brief outline of safety standards in scaffolding and how you can seek recovery for damages through a personal injury claim.

Scaffolding Safety Standards

Scaffold safety standards are set and regulated by OSHA. The agency is the authoritative body that controls how to construct safely, use and maintain scaffolds. Different states and private entities may also pass their scaffold safety standards. Infringement of any of these published standards or regulation can serve as evidence in a personal injury lawsuit involving the use of an unsafe scaffold. Some of the most commonly violated OSHA scaffold safety standards include;

• A scaffold should never be supported using loose objects
• A scaffold should support at least four times the projected indispensable weight
• Planks ought to be extended over their end supports between six and eighteen inches
• All planking ought to be overlapped by twelve inches
• Shore and lean-to scaffolds are not allowed
• Overhead protection ought to be provided when there is work going on
• Debris, materials, and tools should not be placed on a scaffold unnecessarily

Filing a Scaffolding Accident Lawsuit

To successfully sue for damages resulting from a scaffold fall, you must prove that;

• The defendant had a duty to provide for your safety
• The defendant violated the said duty, and
• Due to the violation, you got injuries

The Duty of Care – To prevail in your case, the defendant must have an obligation to make sure that you are safe. The party to sue may vary from one state to the other, but typically, any party that is involved in providing, moving and maintaining scaffolds owes you a reasonable duty of care and can be held responsible for scaffold accident.

Violation of Duty of Care – Any breach of scaffold safety standards set by OSHA amounts to a violation of the duty of care. Also, a violation of any other safety standard acceptable to the industry or advocated by experts is regarded as a breach of the duty of care.

Proving Injuries – It is critical that the injuries sustained occurred due the defendant’s negligence.  Otherwise you will have no insurance claim. In other words, you cannot file a scaffolding accident lawsuit in you sustained your injury elsewhere. However, if the fall aggravated the condition of an already existing injury, you can recover some amount of damages. Just like any other form of personal injury claim, the most common types of damages in a scaffolding accident case include:

• Loss of normal life
• Medical bills
• Lost income
• Pain and suffering

Involving a Personal Injury Lawyer For Compensation

Scaffold accidents lawsuits can be complicated particularly when proving that the defendant owed you standard care and was negligent. As such, involving a PI lawyer will help you build a strong case and by extension increase your chances of winning as well as getting a fair settlement amount. If you are contemplating about filing a scaffolding injury case, contact a personal injury lawyer in your area today and book a free consultation session.

Understanding The Insurance Claim Process For Injuries

Understanding The Insurance Claim Process For Injuries

When you’re involved in a car accident, one of the first things you should do is to report the crash to your insurer and file a claim. As a matter of fact, most insurance companies want you to report the accident as soon as possible. However, the process of filing a car crash claim isn’t as straightforward as you may think. Most often than not you will experience hitches here and there not to mention delays in getting your compensation. It is thus imperative that you get the claim process correct, right from the word go to avoid unnecessary delays. Below is a comprehensive look at the process of making a car accident insurance application to help you start on the right footing.

Start By Reporting the Accident

This almost goes without saying. It is of utmost importance that you notify your insurance company about the crash as soon as you can and let them know that you intended to file a claim for compensation as stipulated in your policy. The insurer will assign a claim adjuster to analyze your policy’s terms as well as assess the facts you have given concerning the accident.

If the crash is minor and the extent of damage is negligible, the claim adjuster will make a rough estimate of the losses and float an offer. However, in serious car crashes that involve severe injuries, your policy may not be enough to cater for the losses incurred. In such situations, your insurance company will take more time to analyze the circumstances surrounding your claim, which brings us to the next step.

Analyzing the Accident Claim

In serious car crashes resulting in severe injuries, the claim adjuster will want to know more about the collision. Thus, he or she will carry out further investigation in a bid to find out what was the state of affairs before and after the accident. The adjuster may get in touch with eyewitnesses, go through the police reports, look at the photos taken at the scene of the crash and may even seek the services of accident reconstruction specialists to try and find out what happened. Additionally, the adjuster will look extent of your injuries and the claims you’ve made. He or she may ask that you provide records showing your medical past. The adjuster will do this as an attempt to establish if the injuries occurred as a result of the accident or if the amount incurred as medical bills is as you have stated in the claim.

Note that the claim adjuster will do all this not in your interest, but that of the company. He or she would want to ensure that the insurer avoids liability, now that your policy is not enough to cover for your losses. You should, therefore, be very careful with the kind of information you give to the adjuster. Most of them will ask questions that will draw you in admitting liability. Give simple answers to inquiries and always keep in mind that you don’t have to answer every question the claim adjuster asks. While you are at it, do not make any recorded statements even when the adjuster asks you to. Once a statement is documented in any form, changing it at a later date to suit your claim may be impossible.

Initial Settlement Offer

Once the adjuster gets acquainted with the events surrounding your case and the extent of the extent of injuries, he or she will float an offer to pay for the losses. If the offer is enough to cover your losses and you accept it, the insurance company will write you a check. In most instances, however, the initial proposition is hardly enough to cover the losses. It is for this reason that you should always call a personal injury attorney to assess the initial settlement offer before you accept or decline it.

Negotiating the Settlement

If the initial settlement offer was not adequate to cover the losses, or if the insurance company denied your claim, negotiations for a better amount will start. Be sure to provide the evidence of you injuries and the medical bills incurred as a way of showing that the amount in your application is justifiable. Negotiating for a favorable settlement offer is not easy, and you will need the assistance of an experienced and skilled personal injury lawyer to get the amount that is proportionate to the losses incurred.  Don’t hesitate to call a personal injury attorney whenever you want to file an injury claim, it will save you lots of hassles and will reduce the likelihood of your application getting denied.

Avoiding Admission of Fault After The Accident

Avoiding Admission of Fault After The Accident

Picture this; you’ve just been in a car accident, scores of people have gathered around the scene, eager to know what happened. Before you even say anything concerning the crash to anyone at the scene, you need to realize that what comes out of your mouth can have far-reaching consequences. In fact, any unintentional statement that you make on the site of the collision can be used against you and even taken as an admission of liability. That said, how should you conduct yourself after a crash? A car accident attorney shares some valuable tidbits.

At The Accident Scene

Most likely, you are bound to panic right after a collision, and there is a probability of saying things without putting much thought into it. It normal to get emotional for the damage caused to the other motorist’s car to but never get to a point of apologizing more so when you feel that you were at fault for the accident. As a matter of fact, never use conciliatory words, fault or no fault, lest the other motorist uses them against you later on. According to many personal injury lawyers, some of the statements that you should avoid include:

• I regret that I didn’t see you coming
• I only had my eyes off the road for a split second
• I wish I hadn’t answered that call
• It’s been a while since I checked my tires, I knew they would mess me pretty soon

Statements such as the ones cited above, or anything similar can be interpreted to mean that you admitted to having caused the accident which by extension means that trying to argue anything to the contrary, later on, might prove quite challenging.

If you feel aggravated by the other party, avoid using anger driven statements. If for instance, out of sheer anger you insult or threaten to take legal action against the other driver, it goes without saying that he or she will try to defend himself or herself. Most likely, this will trigger a back and forth exchange of words as each party tries to prove that they were not at fault for the accident. Try as much as you can to keep your cool and remain respectful to the other motorist no matter how ugly the situation seems to be.

Be Careful How You Speak to Your Claim Adjuster

On paper, you may tend to think that a claim adjuster is out to help you get compensated. In reality, however, the claim adjuster is out to help the insurer avoid liability. It might sound out of the ordinary, but most insurance companies will try to avoid paying claims, so they will use crooked ways to allege that you were to blame for the accident.  One of the easiest tricks most insurers use is to make a claim adjuster get as much information as possible about the crash from you with the hope of luring you to admit liability. When talking to your adjuster, use casual language and don’t befriend him or her. Never issue a recorded statement and while you need to remain truthful, be sure to decline any request to discuss the series of events before and after the accident.

Remember that you’re not obliged to answer every question. If you have no reply to a question, simply say so or tell the adjuster that you can’t remember and can always get information at a later date. If you have to narrate anything to anybody about the crash, let it be your car accident attorney. Other mistakes to avoid when dealing with a claim adjuster include:

• Do not agree to sign any medical releases until your treatment is almost finished. That way, you will save your doctor the hassles of dealing with the claim adjuster.
• Never release your Social Security number to the adjuster. Doing so allows the adjuster to access a whole lot of your personal information. While it’s against the law, the adjuster can gain access to your credit history or any other information that can be used to deny you compensation.

To avoid making mistakes after you’re involved in a car crash, call an accident attorney immediately for guidance on how to proceed. If need be, the attorney can avail himself or herself at the scene of the crash and handle matters on your behalf. Remember, no matter what happens, do not admit liability; stay calm and let the due process unfold.

The Upside to Personal Injury

The Upside to Personal Injury

When an injury occurs while you’re at work and you’re considered an employee of the business, then workers compensation can cover your injury-related expenses. It is actually a broad area of law that covers many different types of injuries.  Only during later stages are you going to start to observe that the injury has led to life changing consequences. Personal injury happens whenever you are harmed through another individual’s actions. Surprisingly, in addition, it includes psychological injury.

injuryThe injury should have been the consequence of an accident or other unforeseen circumstance. So, if it is caused by a defective product, for example, the clock begins running when the injury itself occurs, even if the product was designed and manufactured long before. Folks suffer from personal injuries each moment. If you believe you are in possession of a personal injury or medical malpractice claim in Louisiana, the very best thing to do is to get hold of an injury lawyer without delay.

If you’re unable to work following your injury, you may be facing mounting medical bills and household expenses. Once all injuries are treated and there’s no additional pain or loss in any bodily functions, then that’s the opportunity to apply for a personal injury case. To be able to have a viable personal injury lawsuit or claim, your private injury or injuries must have been a result of the negligence of some other individual or entity (like a company or government agency). If you’re the casualty of a personal injury, there are many matters you can do in order to help yourself.

What Personal Injury Is – And What It’s Not

If you’re not sure whether your injury falls under the class of private injury law, our lawyers will be able to help you determine how to proceed in your free consultation. Personal injury is something which any individual can go through. Physical injuries may lead to premature death and worsen current health troubles.  Whether your injury is as a consequence of a big accident or a medical wellness, you can request compensation. Folks who sustained injuries in a car crash that isn’t insured or is under-insured, there will be a need to seek the services of accident lawyers as quickly as possible after the incident. In the event the personal injuries aren’t severe, obtain every detail of the driver and of the other vehicle or vehicles involved with the incident. Personal injury according to the law is understood to be the damage done to an individual, physically or emotionally because of somebody else’s negligence.

You will need to go for a personal injury attorney, who deals in a given case which suits your requirements. Before you converse with a personal injury attorney, record what you consider the incident. Especially if you opt to work with a fantastic personal injury attorney. It is very important to look for the finest and professional personal injury lawyer because only a specialist one can assist you in eliminating hassles of submitting a claim against the opponent.

What If I’m In An Accident With a Self-Driving Car?

What If I’m In An Accident With a Self-Driving Car?

The self-driving car is here, and if riding in a vehicle that has an “auto-pilot” feature sounds like your cup of coffee, you might as well own one. Is the probability of the car getting involved in a crash lesser than that of a typical automobile? It turns out, despite being a “smart car,” a self-driving motor vehicle is not spotless . As a matter of fact, Google is on record saying that their self-driving car has been involved in not less than eleven accidents.  While Chris Urmson, Google’s head of the self-driving car program says that in all the eleven incidences, the car was not to blame for the crash, you can’t take away the fact that these cars are not any safer. That said, what happens if you’re involved in an accident with a self-driving car?

Keep Your Cool After The Accidents

Before the self-driving car was released into the market, someone must have tested it and determined that it meets all the regulations needed to be on the road. Therefore, if there is somebody in the car, all you need to do is assume that you’ve been involved in an accident with a typical car. Be calm and do everything you would have done in a normal car crash. Attend to the injured, get the other party’s details and call the police. In short follow the standard course of action following a car accident.

Is It Better Financially To Collide With a Self-Driving Car?

According to Bryant Walker Smith, a professor based at the University Of South Carolina School Of Law, there are some notable differences if you get involved in a crash with as self-driving car. Smith notes that you may be better off be getting in an accident with a self-driving car than if you were hit by a typical vehicle, driven by a human being especially if you’ve sustained injuries. He notes that the makers of self-driving cars have a sound financial standing and would want to negotiate any suit as soon as possible to avoid tarnishing of their brand name.

Additionally, if the vehicle, while in self-driving mode hits another car or a pedestrian, the aggrieved party can bring a product liability suit against the company.  It would be a lot easier seeking compensation in a product liability case than it would if you were trying to show negligence. Besides, in some states, the manufacturer of the self-driving car can be sued under the theory of strict liability. The theory states that the complainant can get compensated even without having to prove that the manufacturer was at fault.  Also, manufacturers of self-driving cars are obligated to install devices that will record and save what transpired 30 seconds before any accident occurs. In essence, this means that collecting evidence is a lot easier.

Seek Legal Help Immediately

Due to the uniqueness of motor vehicle crashes involving self-driving cars, you may want to assistance as you pursue compensation. Thus, if you have you’re in a collision with a self-driving car, contact a car accident attorney in your area immediately. Apart from helping you collect the evidence, the lawyer will ensure that you get the compensation that is equal to the losses suffered.

Drone Law Enacted as Part of North Carolina Budget Bill

Drone Law Enacted as Part of North Carolina Budget Bill

On Saturday, August 2, the North Carolina General Assembly gave final approval to the Appropriations Act of 2014. The 260-page budget bill—which is now on the Governor’s desk—contains several pages governing the use and operation of unmanned aircraft systems (“UAS,” but known in common parlance as “drones”). The UAS provisions are similar to ones that were unanimously passed on June 25, 2014, by the North Carolina House, in the HB 1099.

Assuming the budget bill becomes law , what does its passage mean for North Carolina—which, by the way, should be aspiring to be “ascendant in UAS”—and for companies associated with, or in the production stream of, UAS? After all, the FAA appears to be far from achieving lift-off in its Congressionally-mandated UAS rulemaking proceeding: The U.S. Department of Transportation’s Office of the Inspector General recently observed in its June 26, 2014, Audit Report that the FAA “is behind schedule on most of the act’s [FAA Modernization and Reform Act of 2012’s] UAS provisions, and the magnitude of unresolved safety and privacy issues will prevent FAA from meeting Congress’ September 2015 deadline for UAS integration.” (It has been reported that President Obama may use an Executive Order to assign responsibility for generating UAS privacy regulations to the National Telecommunications and Information Administration (NTIA)—perhaps that would help bring resolution to the “unresolved privacy issues” referenced in the Audit Report.) And, while North Carolina was not selected by the FAA as a UAS test site, the North Carolina NextGen Air Transportation Center has obtained Certificates of Authorization (COA) to fly UAS in Hyde County, Butner, and elsewhere. So, again, with the FAA apparently stalled, and with NGAT operations taking off, what are the implications of the UAS provisions in the budget bill? It is difficult to say with certainty, but here are a few thoughts.

First and foremost, it means that the North Carolina General Assembly is paying attention. This is a good thing. To have the General Assembly engaged on this issue means that there are legislators who care about the technology and its economic potential and that there are commercial and governmental entities that are engaged and, in turn are engaging, legislators on the issue. This is important because NGAT cannot carry all the water alone to make North Carolina “Ascendant in UAS.”

Second, the General Assembly has recognized the continuing importance of privacy in a world where flying robots with cameras may soon become the norm. For example, the bill largely curtails the ability of people and entities—public and private alike—to conduct surveillance of people, their homes, and private property. (The legislation does not specifically define “conduct surveillance,” but judges and juries—not to mention cartoonists—are capable of working that out on a case-by-case basis.)

Third, the legislation shows the General Assembly’s astute recognition of the need to balance individual privacy with the critical function news gathering plays in our free, democratic society. Specifically, the legislation includes a provision exempting “newsgathering, newsworthy events, [and] events [and] places to which the general public is invited” from the general prohibition on “conducting surveillance.” Of course, the FAA’s current stance remains that it is illegal for journalists and newsgathering organizations to use UAS for newsgathering purposes (a position challenged earlier this year by several news organizations), but kudos to the North Carolina General Assembly for putting a high value on a free press and recognizing the importance of technological developments to the continued ability of newsgatherers to perform their critical societal function.

Fourth, the legislation restricts the ability of citizens to use UAS “to fish or to hunt.” Since the UAS provisions in the budget bill also make it a Class E felony “for any person to possess or use an unmanned aircraft or unmanned aircraft system that has a weapon attached,” the hunting limitation is reasonable, internally consistent, and, frankly, much appreciated. Although at least one commentator has suggested that the ban on hunting and fishing with UAS may be overly-restrictive because it may bar “using images from a small drone to help determine where to hunt or fish,” a close reading of the relevant provisions reveals that the bill only outlaws the use of UAS “to take” fish and wildlife and does not—at least not by its plain language—necessarily prohibit the use of UAS to find, track, or locate fish or wildlife for the purpose of engaging in non-UAS fishing or hunting. (CAVEAT: This is not a formal legal opinion about the scope of these provisions in the law!)

Finally, it cannot be ignored that the legislation contains the structure for the North Carolina Department of Transportation to establish a state licensing regime for UAS operators. It is admittedly difficult to argue with the wisdom of licensing commercial UAS operators. Nonetheless, the licensing provisions may have unintended consequences: the uncertainty they create may be viewed unfavorably by UAS stakeholders that might otherwise be interested in bringing business to North Carolina, the rightful epicenter of the UAS industry. While the potential federal preemption arguments would make for a fascinating discussion, any preemption discussion is premature, since we do not yet know what the FAA is going to do in this area. To be sure, the safety issues posed by commercial UAS operations are not to be taken lightly, and the General Assembly is to be commended for its foresight in that regard. On the other hand, as pointed out in the June 26, 2014, Audit Report, the FAA itself is struggling with how to safely incorporate small UAS into the national airspace—this may be an area better left to uniform, federal policy.

All UAS stakeholders that would like to see North Carolina ascend in UAS should be watching . . . I know my high school senior, for one, is . . . .

D.C. Circuit Considers Anti-SLAPP Case

D.C. Circuit Considers Anti-SLAPP Case

Until now, we have not yet waded into the legal and political morass that is .  In case you have not picked up a newspaper in the past three years, this is a complaint brought by a former official with the U.S. Department of Agriculture against Andrew Breitbart and one of his employees.  The Washington Post described the case as follows:
Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. . . .
The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.
Sherrod brought suit in the District of Columbia.  The defendants removed the case to federal court, and then filed a motion to dismiss pursuant to D.C.’s relatively new anti-SLAPP act, which had been passed just a year before and had gone into effect at the end of March 2011.  We first wrote about anti-SLAPP statutes in 2009.  In February 2012, the district court denied the motion to dismiss on a number of grounds, including: (1) the complaint had been filed before the effective date of D.C.’s anti-SLAPP law and could not be applied retroactively; (2) even if it could be applied retroactively, the law would then be considered procedural and therefore could not be applied by a federal court sitting in diversity; and (3) even if it could be applied in federal court, by seeking several extensions of their deadline to respond to the complaint, the defendants had missed the statutory deadline in which to file a motion under D.C.’s law (45 days).
The defendants appealed that decision to the United States Court of Appeals for the District of Columbia Circuit, arguing, among other things, that denial of an anti-SLAPP motion to dismiss is immediately appealable.  Oral argument in that appeal took place on March 15, 2013, and a decision is likely to be issued sometime this summer.  If the D.C. Circuit agrees that it has jurisdiction to hear this interlocutory appeal—meaning an appeal that comes before the final resolution of the case at the trial court level—and according to reports of oral argument that is no sure thing, the court will answer several critical questions of first impression about D.C.’s anti-SLAPP law.
Of primary importance to media defendants is whether a state (or District of Columbia) anti-SLAPP statute can be applied in federal court.  The general rule is that statutes or rules that are procedural (i.e., they govern how an action proceeds through the court system) are not applied by federal courts, but statutes or rules that are substantive (i.e., they govern the merits of the cause of action) are to be applied by federal courts.  This question is crucial, because if plaintiffs could avoid the effect of an anti-SLAPP statute by bringing their case in federal court (by either adding a federal cause of action or creating diversity among defendants), many might choose to do so.
A coalition of media organizations filed an amicus curiae brief in the D.C. Circuit urging the court to align itself with the First, Fifth, and Ninth Circuits, which have all held that anti-SLAPP statutes are substantive, and therefore should be applied by a federal court sitting in diversity.  Indeed, the amici asserted that every Circuit Court to examine the question has agreed that such statutes are substantive.  In the coming days, we will have another post about one of the other important questions raised by the Sherrod case—whether the defendants’ motion to dismiss was untimely.  Of course, we will keep you posted when the court issues its decision.
A Brief Overview of Anti-SLAPP Statutes

A Brief Overview of Anti-SLAPP Statutes

As we discussed in this earlier post, anti-SLAPP statutes are laws designed to prevent plaintiffs from using the threat of costly litigation to chill the free speech rights of people seeking to participate in the public debate over important issues.

SLAPP suits — Strategic Litigation Against Public Participation — are typically claims for defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference with contract filed against a party who has criticized or spoken out against the plaintiff in some public context.  The paradigm case is a real estate developer filing a defamation or tortious interference suit against a citizen who has spoken out publicly against a proposed development project.  By filing suit, no matter how weak its claim might actually be, a plaintiff forces the citizen to spend money responding to the claim and, in the process, to think twice about speaking out publicly again.

In response, twenty-six states and one territory have passed anti-SLAPP statutes that offer some procedural protection to defendants in these actions.  In another two states — Colorado and West Virginia — courts have granted defendants a defense to lawsuits targeting their exercise of First Amendment rights concerning issues of public importance.

The California statute was the first of its kind and is generally considered the broadest (i.e. most protective of speech rights).  Under the law, any action “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” will be subject to a special motion to strike by the defendant.  This applies to any act by defendant in “furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.”   That includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Click here for a compilation of cases outlining the types of speech covered by the California law.

If the defendant can make a prima facie case that the suit arises from speech or action covered by the statute, the plaintiff then bears the burden of showing a probability of prevailing on the underlying claim.  See Manufactured Home Cmty., Inc. v. County of San Diego, 544 F.3d 959, 963 (9th Cir. 2008).  Thus, where the underlying claim is for defamation, the plaintiff would have to demonstrate early in the proceedings — before discovery — the probability that it could satisfy each element of the claim, including falsity and the appropriate standard of fault.  This is undoubtedly a heavy burden for any plaintiff, even one with a meritorious claim.

Equally important for both parties, the California statute provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  At the same time, “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion.”

It should be noted that in California (as well as in Georgia, Louisiana, Maine, Massachusetts, Minnesota, Oregon, and Rhode Island) discovery in the underlying case is stayed pending resolution of the anti-SLAPP motion to strike unless there is “good cause.”  Other states — Arkansas, Hawaii, Maryland, Missouri, and Pennsylvania — have an unqualified discovery stay.

States with less far-reaching anti-SLAPP laws than California’s limit the scope of the statute to speech concerning public bodies.  For example, the Minnesota statute applies to any “public participation,” which the law defines as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”

While these narrower statutes may be adequate to protect individuals speaking out about government actions, they offer less protection for media defendants.  A court in Massachusetts, for example, held that a newspaper campaign to discourage the construction of a mosque did not fall within the scope of the state’s anti-SLAPP statute, which covers the exercise of the “right of petition under the constitution of the United States or of the commonwealth.”   The court there allowed the plaintiff’s defamation claim to go forward.  Islamic Soc’y v. Boston Herald, Inc. (Mass. Super. Ct. July 20, 2006).

Finally, eight states (California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah) allow so-called “SLAPPback suits,” which provide that defendants who have been hit with a SLAPP suit can file a counterclaim against the plaintiff to recover compensatory and punitive damages for abuse of the legal process.  While these suits do not help the defendant avoid the time and expense of litigation, they can act as a deterrent to those considering filing what might be a SLAPP suit.

If you are in a state with an anti-SLAPP law, and you or your news organization gets hit with what you believe is a SLAPP suit, it is important to immediately seek legal counsel familiar with the contours of the statute as it may mandate specific deadlines for filing a special motion to strike.

Florida Supreme Court Rejects False Light

Florida Supreme Court Rejects False Light

The Supreme Court of Florida yesterday issued two opinions holding that Florida law does not recognize the false light invasion of privacy tort.  These outcomes constitute significant wins for media defendants in a state where the existence of false light as a viable state-law claim has been hotly debated.

Rapp v. Jews for Jesus, Inc. involved statements made by the plaintiff’s stepson in a newsletter that suggested the plaintiff had joined or was a believer in the Jews for Jesus philosophy.  Essentially, the plaintiff argued in the underlying proceedings that, while literally true, the statements created a false impression of her, and she brought claims for false light invasion of privacy, defamation, and intentional infliction of emotional distress based upon the statements.  The court rejected the plaintiff’s position following a thorough comparison of the elements of and interests at stake in false light and defamation claims.

We once again acknowledge that it is our duty to ensure the “protection of the individual in the enjoyment of all of his inherent and essential rights and to afford a legal remedy for their invasion.” However, because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.

On the same day it released Rapp, the Supreme Court of Florida also released Anderson v. Gannett. Like RappAnderson involved false light invasion of privacy and defamation claims based on the same set of facts.  The question before the court in Anderson was the applicable statute of limitations for false light claims, but the court dismissed the question as moot given its holding in Rapp.

False light is one of the four branches of the common-law invasion of privacy tort.  In states that recognize false light as viable claim, a plaintiff must generally show that a defendant disseminated some highly offensive false publicity about an identified person with knowledge of or reckless disregard for the falsity of the statement.  The elements are derived from the Restatement (Second) of Torts, 652(E).  With these two decisions, Florida joins a number of other states in rejecting false light as a permissible state-law claim.

The court in Rapp stated that the concern with recognizing false light is that it is largely duplicative of defamation and does not have the same First Amendment protections.  According to the court:

  • Except for the distinction between publicity that is “highly offensive” and a publication that is “defamatory,” the elements of false light and defamation are “remarkably similar.”
  • Florida recognizes a cause of action for “defamation by implication,” which, like false light claims where recognized, applies to literally true statements that are conveyed in such a way as to give a false impression.
  • The distinction between the “objective” standard of injury for defamation versus the “subjective” standard of injury for false light is indistinct in practice. “[C]onduct that defames will often be highly offensive to a reasonable person, just as conduct that is highly offensive will often result in injury to one’s reputation.”
  • The “highly offensive” standard poses too great a risk of chilling free speech because the type of conduct prohibited is not certain.
  • A number of privileges and defenses apply to defamation actions, which may not be the case for false light actions.

Significantly, the Rapp court also stated that recognizing light claims might allow plaintiffs to circumvent the strict requirements of defamation.  For example, Florida, like many states, has pre-suit notice and retraction statutes that apply only to defamation claims and may serve as defenses to those claims if plaintiffs fail to comply.  If you would like more information, contact us for a free consultation.